Who's Responsible Here? Establishing Legal Responsibility in the Fissured Workplace
The nature of work is changing, with workers enduring increasingly precarious working conditions without any safety net. In response, this Article proposes a new "Concentric Circle Framework" to improve workers' access to civil, labor, and employment rights. Many businesses, including...
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| Published in: | Berkeley journal of employment and labor law 2021-01, Vol.42 (1), p.55 |
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| Main Authors: | , |
| Format: | Article |
| Language: | eng |
| Subjects: | |
| Online Access: | Get full text |
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| Summary: | The nature of work is changing, with workers enduring increasingly precarious working conditions without any safety net. In response, this Article proposes a new "Concentric Circle Framework" to improve workers' access to civil, labor, and employment rights. Many businesses, including app-based platforms, have restructured toward "fissured workplace" business models. They treat workers like employees (specifying behaviors and closely monitoring outcomes) but they classify workers as independent contractors (engaging them at an armslength and denying them the rights and benefits tied to employment). These arrangements confound legal classifications of "employment" and expose deficiencies in existing workplace protections, which are based on "employment relationships." As a result, a growing number of workers lack both bargaining power and critical workplace rights and benefits. We propose a Concentric Circle Framework to better govern workers' rights in the modern era. At the core, we maintain that certain rights and protections should not be tethered to an employment relationship, but rather to work itself. First, the Inner Circle establishes rights that should be guaranteed to all workers, including freedom from discrimination and retaliation; access to a safe and healthful working environment; compensation for work and assurance of a minimum wage; and freedom to associate and engage in concerted activity. Second, the Middle Circle pertains to rights exclusive to employment (and not independent contractors). We assert that there should be a rebuttable presumption of employment for all workers, and we propose an updated legal test of employment. Finally, at the Outer Circle of the framework, we address the needs of legitimate independent contractors, suggesting broader policies that promote worker mobility and social welfare. Other scholarship has focused exclusively on either independent contractors or employees, or it has proposed a new category of worker altogether. We contend that this comprehensive framework better assigns rights, responsibilities, and protections in the modern workplace than do other current legal doctrines or alternative proposals. |
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| ISSN: | 1067-7666 2378-1882 |